An appeals court in Washington has ruled that law enforcement must acquire a search warrant before employing cell phone surveillance tools often known as “Stingrays.”
On September 21, an appeals court in Washington issued a damning ruling regarding law enforcement use of cell phone surveillance tools without the use of a warrant. The appeals court became the fourth court to rule against the unrestricted use of the controversial cell site simulators, sometimes known as “Stingrays.” The issue could eventually make its way to the Supreme Court. Stingray is the brand name of a popular cell-site simulator manufactured by the Harris Corporation.
The Electronic Frontier Foundation describes Stingrays as “a brand name of an IMSI (International Mobile Subscriber Identity) Catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cell phone tower – to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not – and tricks your phone into connecting to it.”
This allows the officer who is in possession of the Stingray to know who, when, and to where you are calling, the precise location of every device within the range, and with the latest models, capture the content of your conversations. As the use of Stingrays has grown quickly in the last five years, the public has largely remained in the dark as investigative journalists work to expose the technology.
The case involves Prince Jones, a man sentenced to 66 years in prison after he convicted of sexually assaulting two women. During Jones’ trial it was revealed that D.C. police used a Stingray to locate Jones. The police used the device without first obtaining a warrant. Mr. Jones’ attorney unsuccessfully attempted to have the evidence suppressed at his original trial due to this warrantless tracking. However, the appeals court ruling means the evidence cannot be used and the conviction is overturned.
“The simulator’s operation involved exploitation of a security flaw in a device that most people now feel obligated to carry with them at all times,” wrote Judge Corinne Beckwith in the majority opinion for the court.
Allowing the government to deploy such a powerful tool without judicial oversight would surely ‘shrink the realm of guaranteed privacy’ far below that which ‘existed when the Fourth Amendment was adopted.’
In addition, Judge Beckwith wrote that the use of Stingrays “place an individual in the difficult position either of accepting the risk that at any moment his or her cellphone could be converted into tracking device or of forgoing ‘necessary use of’ the cell phone”.
Prosecutors attempted to convince the judges that it is common knowledge that cellphone can be tracked and thus no expectation of privacy exists. Beckwith disagreed, stating that “a person does not lose a reasonable expectation of privacy merely because he or she is made aware of the government’s capacity to invade his or her privacy.”
The 2 to 1 ruling from the D.C. Court of Appeals comes after similar rulings in the Maryland Court of Special Appeals and federal district courts in New York City and San Francisco.
Nathan F. Wessler of the American Civil Liberties Union, told the Washington Post that the ruling “joins the growing chorus of courts holding that the Fourth Amendment protects against warrantless use of invasive, covert technology to track people’s phones. … We applaud today’s opinion for erecting sensible and strong protections against the government violating people’s privacy in the digital age.”
The growing use of Stingrays and the consistent secrecy of federal and local law enforcement agencies has lead to at least one other instance of a federal judge throwing out evidence which was gained using a stingray. In July 2016, a federal judge in Maryland rejected evidence because police did not obtain a warrant before using the device. Still, there is no consistent policy on how police should handle new technology like the Stingray.
In 2015, the Department of Justice issued a policy guidance ordering its agencies to obtain a search warrant before using the cell site simulators. This guidance does not apply to local and state police. With four federal and state courts now ruling that law enforcement must obtain a warrant before use of Stingrays, it is likely one of these rulings will be challenged in the Supreme Court. Until then, local and state law enforcement are operating in as much secrecy as possible.
It is only through the work of investigative journalists and whistleblowers that the public understands the depth of these devices. The situation has even garnered the attention of the U.S. House and Oversight Committee. In late 2016, the committee issued a report titled, “Law Enforcement Use of Cell-Site Simulation Technologies: Privacy Concerns and Recommendations.” The report notes that the U.S. Department of Justice has 310 cell site simulators spread across several agencies, including the FBI and U.S. Marshals Service. The DOJ spent more than $71 million cell site simulator technology and upgrades between 2010 and 2014. According to the report The Department of Homeland Security has 124 cell-site simulators.
The committee also called on state and local officials to adopt policies similar to those recently enacted by the Department of Justice. In addition, the committee recommend that law enforcement be more forthcoming with judges when they request approval for the use of the devices. As of September 2017, none of these recommendations have been implemented.
Derrick Broze is an investigative journalist and liberty activist. He is the Lead Investigative Reporter for ActivistPost.com and the founder of the TheConsciousResistance.com. Follow him on Twitter. Derrick is the author of three books: The Conscious Resistance: Reflections on Anarchy and Spirituality and Finding Freedom in an Age of Confusion, Vol. 1 and Finding Freedom in an Age of Confusion, Vol. 2
Derrick is available for interviews. Please contact [email protected]
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AND on top of warrants, as a former broadcaster I know the FCC requires a license whenever you’re transmitting more than 100 milliwatts (your smartphone has more power). I’ve seen no applications on the FCC’s website from LEO applying for ANY kind of licensing for “Stingrays” which interestingly enough are manufactured by a leading company in the broadcast transmitter industry.
Derrick Broze does a good job of reporting on the legal reasoning used in the case.